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Friday, 20 July 2018
 

The Case against Human Rights (1 - 2)

(Eric Posner) Many believe that international human rights law is one of our greatest moral achievements. But there is little evidence that it is effective. A radically different approach is long overdue
In July 2013, Amarildo de Souza, a bricklayer living in a Rio de Janeiro favela, was arrested by police in an operation to round up drug traffickers. He was never seen again. De Souza’s disappearance was taken up by protesters in street demonstrations, which were met with a ruthless police response. Normally, de Souza’s story would have ended there, but public pressure led to a police investigation, and eventually to the arrest of 10 police officers, who were charged with torturing and murdering him.
Brazil, one of the largest democracies in the world, is rarely considered to be among the major human rights-violating countries. But every year more than a thousand killings by police – very likely summary executions, according to Human Rights Watch – take place in Rio de Janeiro alone. The prohibition of extrajudicial killings is central to human rights law, and it is a rule that Brazil flagrantly violates – not as a matter of official policy, but as a matter of practice. Brazil is hardly the only country where this takes place; others include India, the world’s largest democracy, South Africa, the Dominican Republic and Iran. These countries all have judicial systems, and most suspected criminals are formally charged and appear in court. But the courts are slow and underfunded, so police, under pressure to combat crime, employ extrajudicial methods, such as torture, to extract confessions.
We live in an age in which most of the major human rights treaties – there are nine “core” treaties – have been ratified by the vast majority of countries. Yet it seems that the human rights agenda has fallen on hard times. In much of the Islamic world, women lack equality, religious dissenters are persecuted and political freedoms are curtailed. The Chinese model of development, which combines political repression and economic liberalism, has attracted numerous admirers in the developing world. Political authoritarianism has gained ground in Russia, Turkey, Hungary and Venezuela. Backlashes against LGBT rights have taken place in countries as diverse as Russia and Nigeria. The traditional champions of human rights – Europe and the United States – have floundered. Europe has turned inward as it has struggled with a sovereign debt crisis, xenophobia towards its Muslim communities and disillusionment with Brussels. The United States, which used torture in the years after 9/11 and continues to kill civilians with drone strikes, has lost much of its moral authority. Even age-old scourges such as slavery continue to exist. A recent report estimates that nearly 30 million people are forced against their will to work. It wasn’t supposed to be like this.
At a time when human rights violations remain widespread, the discourse of human rights continues to flourish. The use of “human rights” in English-language books has increased 200-fold since 1940, and is used today 100 times more often than terms such as “constitutional rights” and “natural rights”. Although people have always criticised governments, it is only in recent decades that they have begun to do so in the distinctive idiom of human rights. The United States and Europe have recently condemned human rights violations in Syria, Russia, China and Iran. Western countries often make foreign aid conditional on human rights and have even launched military interventions based on human rights violations. Many people argue that the incorporation of the idea of human rights into international law is one of the great moral achievements of human history. Because human rights law gives rights to all people regardless of nationality, it deprives governments of their traditional riposte when foreigners criticise them for abusing their citizens – namely “sovereignty” (which is law-speak for “none of your business”). Thus, international human rights law provides people with invaluable protections against the power of the state.
And yet it is hard to avoid the conclusion that governments continue to violate human rights with impunity. Why, for example, do more than 150 countries (out of 193 countries that belong to the UN) engage in torture? Why has the number of authoritarian countries increased in the last several years? Why do women remain a subordinate class in nearly all countries of the world? Why do children continue to work in mines and factories in so many countries?
The truth is that human rights law has failed to accomplish its objectives. There is little evidence that human rights treaties, on the whole, have improved the wellbeing of people. The reason is that human rights were never as universal as people hoped, and the belief that they could be forced upon countries as a matter of international law was shot through with misguided assumptions from the very beginning. The human rights movement shares something in common with the hubris of development economics, which in previous decades tried (and failed) to alleviate poverty by imposing top-down solutions on developing countries. But where development economists have reformed their approach, the human rights movement has yet to acknowledge its failures. It is time for a reckoning.
Although the modern notion of human rights emerged during the 18th century, it was on December 10, 1948, that the story began in earnest, with the adoption of the Universal Declaration of Human Rights by the UN general assembly. The declaration arose from the ashes of the second world war and aimed to launch a new, brighter era of international relations. It provided a long list of rights, most of which are the familiar “political” rights that are set down in the US constitution, or that have been constructed by American courts over the years. The declaration was not dictated by the United States, however, and showed the influence of other traditions of legal thought in its inclusion of “social” rights, such as the right to work.
The weaknesses that would go on to undermine human rights law were there from the start. The universal declaration was not a treaty in the formal sense: no one at the time believed that it created legally binding obligations. It was not ratified by nations but approved by the general assembly, and the UN charter did not give the general assembly the power to make international law. Moreover, the rights were described in vague, aspirational terms, which could be interpreted in multiple ways, and national governments – even the liberal democracies – were wary of binding legal obligations. The US did not commit itself to eliminating racial segregation, and Britain and France did not commit themselves to liberating the subject populations in their colonies. Several authoritarian states – including the Soviet Union, Yugoslavia and Saudi Arabia – refused to vote in favour of the universal declaration and instead abstained. The words in the universal declaration may have been stirring, but no one believed at the time that they portended a major change in the way international relations would be conducted; nor did they capture the imagination of voters, politicians, intellectuals or anyone else who might have exerted political pressure on governments.
Part of the problem was that a disagreement opened up early on between the US and the Soviet Union. The Americans argued that human rights consisted of political rights – the rights to vote, to speak freely, not to be arbitrarily detained, to practise a religion of one’s choice, and so on. These rights were, not coincidentally, the rights set out in the US constitution. The Soviets argued that human rights consisted of social or economic rights – the rights to work, to healthcare, and to education. As was so often the case during the cold war, the conflict was zero-sum. Either you supported political rights (that is, liberal democracy) or you supported economic rights (that is, socialism). The result was that negotiations to convert the universal declaration into a binding treaty were split into two tracks. It would take another 18 years for the United Nations to adopt a political rights treaty and an economic rights treaty. The International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights finally took effect in 1976.
As the historian Samuel Moyn has argued in his book The Last Utopia, it was not until the late 1970s that human rights became a major force in international relations. President Jimmy Carter’s emphasis on human rights seems to have been a reaction to Vietnam and the gruesome realpolitik of the Nixon era, but Carter himself was unable to maintain a consistent line. Allies such as Iran and Saudi Arabia were just too important for American security, and seen as a crucial counterweight to Soviet influence. Still, something changed with Carter. His five successors – Republicans and Democrats alike – have invoked the term “human rights” far more frequently than any president before him. It is not that presidents have become more idealistic. Rather, it is that they have increasingly used the language of rights to express their idealistic goals (or to conceal their strategic goals).
Despite the horrifying genocide in Rwanda in 1994, and the civil war in Yugoslavia, the 1990s were the high-water mark for the idea of human rights. With the collapse of the Soviet Union, economic and social rights lost their stigmatising association with communism and entered the constitutional law of many western countries, with the result that all major issues of public policy came to be seen as shaped by human rights. Human rights played an increasingly important role in the European Union and members insisted that countries hoping to join the EU to obtain economic benefits should be required to respect human rights as well. NGOs devoted to advancing human rights also grew during this period, and many countries that emerged from under the Soviet yoke adopted western constitutional systems. Even Russia itself made halting movements in that direction.
America’s recourse to torture was a significant challenge to the international human rights regime
Then came September 11, 2001 and the “war on terror”. America’s recourse to torture was a significant challenge to the international human rights regime. The United States was a traditional leader in human rights and one of the few countries that has used its power to advance human rights in other nations. Moreover, the prohibition on torture is at the core of the human rights regime; if that right is less than absolute, then surely the other rights are as well.
The rise of China has also undermined the power of human rights. In recent years, China has worked assiduously behind the scenes to weaken international human rights institutions and publicly rejected international criticism of the political repression of its citizens. It has offered diplomatic and economic support to human rights violators, such as Sudan, that western countries have tried to isolate. Along with Russia, it has used its veto in the UN security council to limit western efforts to advance human rights through economic pressure and military intervention. And it has joined with numerous other countries – major emerging powers such as Vietnam, and Islamic countries that fear western secularisation – to deny many of the core values that human rights are supposed to protect.
Each of the six major human rights treaties has been ratified by more than 150 countries, yet many of them remain hostile to human rights. This raises the nagging question of how much human rights law has actually influenced the behaviour of governments. There are undoubtedly examples where countries enter into human rights treaties and change their behaviour. The political scientist Beth Simmons, for instance, has described the observable impact in Japan and Colombia of the ratification of the Convention on the Elimination of All Forms of Discrimination Against Women. The puzzle is how to reconcile this with the many examples of blatant human rights violations. Saudi Arabia ratified the treaty banning discrimination against women in 2007, and yet by law subordinates women to men in all areas of life. Child labour exists in countries that have ratified the Convention on the Rights of the Child: Uzbekistan, Tanzania and India, for example. Powerful western countries, including the US, do business with grave human rights abusers.
In a very rough sense, the world is a freer place than it was 50 years ago, but is it freer because of the human rights treaties or because of other events, such as economic growth or the collapse of communism?
The central problem with human rights law is that it is hopelessly ambiguous. The ambiguity, which allows governments to rationalise almost anything they do, is not a result of sloppy draftsmanship but of the deliberate choice to overload the treaties with hundreds of poorly defined obligations. In most countries people formally have as many as 400 international human rights – rights to work and leisure, to freedom of expression and religious worship, to nondiscrimination, to privacy, to pretty much anything you might think is worth protecting. The sheer quantity and variety of rights, which protect virtually all human interests, can provide no guidance to governments. Given that all governments have limited budgets, protecting one human right might prevent a government from protecting another.